February 6, 2009
Restyling hits civil and criminal forms
The effort to re-write the federal rules in "plain English" has spread. A working group at the Administrative Office of the U.S. Courts has put together 56 new, restyled forms, both civil and criminal. You can find them here (though you may have to poke around to figure out which of the 126 are actually new).
February 5, 2009
Does Anyone Care About Class Actions?
The Houston Chronicle reported Monday that very few of the supposed-beneficiaries of a massive cosmetics class action knew or cared about the lawsuit. The suit netted about $25 million for the lawyers involved, and, for the class members, what the reporter referred to as a "trick or treat" at shopping malls around the country. This fanned the flames of the debate, discussed in the article, of whether there's any real purpose to these suits, other than to make lawyers rich. On the other side of the debate, one law professor told reporters: “It doesn’t matter if the people involved didn’t know about the case. It ought to be about deterring misconduct by business.” One thing was for certain: the consumers were happy to get free stuff.
February 4, 2009
Ever Thought Civil Cases Take Too Long? So Does the IAALS
The Institute for the Advancement of the American Legal System has put together an extremely comprehensive study on the time consumed by civil cases in American federal district courts. It purports to be concerned primarily with the discrepancy between the time certain types of cases take in one district court as opposed to another, why the discrepancy exists. It also focuses on what can be done to remedy the unnecessary delay seen in some districts. It begins with a series of findings, some of which seem rather obvious:
Finding #1: Cases in which: (1) a trial date is set early, (2) discovery issues are raised and
resolved within the set discovery period, and (3) dispositive motions are filed as early as possible
tend to be resolved more quickly than cases where these things do not occur.
Finding #2: About one-third of civil cases take more than a year to resolve.
Finding #3: Rule 16 scheduling conferences are held in less than half of all civil cases.
Finding #4: The time it takes a judge to rule on motions on disputed discovery, motions to
dismiss, and motions for summary judgment varies significantly across courts.
Finding #5: Motions to dismiss were frequently filed and granted, even before the Twombly
Finding #6: Holding a hearing is associated with faster times to ruling for motions on disputed
discovery, although the evidence is less clear with respect to dispositive motions.
Finding #7: Many cases settle shortly after a motion to dismiss or a motion for summary
judgment is denied.
Finding #8: About 90% of all motions to extend deadlines are granted in every court, but in
courts with faster average overall times, many fewer motions to extend deadlines are filed.
Finding #9: External reporting of case management data does appear to encourage courts to
rule more rapidly on certain motions than might otherwise be the case.
Finding #10: An attitude of efficiency, especially when embraced by both the bench and bar, can
contribute to lower disposition times.
The abstract describes it as:
This is an investigation into civil case processing in the United States District Courts. It broadly addresses two main issues: (1) the variation in the techniques, steps, and procedures that different judges and attorneys use to manage their civil cases, despite the existence of an (at least facially) uniform set of civil rules; and (2) the relationship between those techniques, steps, and procedures, and the amount of time it takes for cases to proceed from filing to disposition. Our objective is to explain how judges, attorneys and parties contribute to the overall length of a case through the procedures they adopt, tactics they use, and schedules to which they adhere.
Based on review of the dockets of nearly 7700 closed civil cases in eight federal district courts, the study examines statistical correlations between the overall time to disposition of a case and the presence and timing of typical events in the course of litigation (such as a Rule 16 conference, discovery disputes, and motion practice). It also sets out descriptive statistics concerning the use of scheduling conferences, discovery and dispositive motions, and extensions of time. The study concludes with a discussion of non-quantitative factors that may affect case processing, including local legal culture, public reporting of caseflow management data, and judicial leadership.
The entire article can be found here.
February 3, 2009
Congress and Standing
Professor Michael E. Solimine from the University of Cincinnati has posted a paper on SSRN that he contributed to a recent symposium on "Access to the Courts in the Roberts Era." The article, Congress, Separation of Powers, and Standing, is forthcoming in Volume 59 of the Case Western Reserve Law Review. This abstract follows:
Plaintiffs must satisfy certain standing requirements before they may bring a civil action in federal court. Typically a plaintiff must have been injured in particular way, the injury was caused by the defendant's conduct, and it is capable of being redressed by the relief granted by the court. This article, a contribution to a symposium on "Access to the Courts in the Roberts Era," revisits these requirements in light of (1) several cases decided in the early years of the Roberts Court, (2) the new members of the Court, and (3) the considerable and continuing scholarly debate over the role of Congress in statutorily providing for Congress.
Part II of the article briefly sets out the standing requirements. Part III addresses the views on standing of the most recent additions to the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, before they joined the Court. Part IV addresses, in three sections, the standing decisions of the initial Terms of the Roberts Court. The first section of that part discusses and dismisses the utility of a purely originalist approach to determining standing. The second section discusses recent cases which have addressed the limitations separation of powers concerns place on standing sought by taxpayers, or by states as plaintiffs. The third section considers from various perspectives the role of Congress in providing for standing by statute, and the appropriate response of federal courts in applying those statutes. The article concludes in Part V by addressing the likely future of standing in the Roberts Court and in the Obama Presidency.